. 

NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

MICHAEL BEN GRAVES, 

Petitioner, 

v. 

DEPARTMENT OF THE NAVY, 

Respondent. 

__________________________ 

2011-3150 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in consolidated case nos. SF3330090786-I-1 and 

SF300A100062-I-1. 

___________________________ 

Decided: December 9, 2011 

___________________________ 

MICHAEL B. GRAVES, of Los Angeles, California, pro 

se. 

DANIEL B. VOLK, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of 

Justice, of Washington, DC, for respondent. With him on 

the brief were TONY WEST, Assistant Attorney General, 

JEANNE E. DAVIDSON, Director, and DONALD E. KINNER, 

Assistant Director. 
GRAVES v. NAVY 2

__________________________ 

Before DYK, PROST, and MOORE, Circuit Judges. 

Per Curiam. 

Petitioner Michael B. Graves appeals from a decision 

by the Merit Systems Protection Board (Board) denying 

some of Mr. Graves’s claims and dismissing others for 

lack of jurisdiction. For the reasons set forth below, we 

affirm. 

BACKGROUND

Mr. Graves, a preference-eligible veteran, applied for 

multiple positions as a medical records technician with 

the Department of the Navy (Navy). Mr. Graves submitted one application under a specific vacancy announcement for a GS-7 or GS-8 level medical records technician 

open to the general public. The Navy issued a certificate 

of eligibles at the GS-7 level, listing Mr. Graves and one 

other applicant. The Navy did not make a selection from 

that certificate, stating that the candidates lacked the 

requisite skills. 

The Navy issued a second announcement for the position, in which applicants that applied under the prior 

announcement were not required to reapply. The Navy 

issued another certificate of eligibles at the GS-7 level, 

including Mr. Graves and two others. The Navy again did 

not select anyone from that certificate. The Navy also 

issued a certificate of eligibles at the GS-8 level, in which 

Mr. Graves was not among the three applicants listed. 

The Navy selected a non-veteran from the GS-8 certificate 

of eligibles. 

Mr. Graves also applied to a separate open and continuous merit staffing announcement. Mr. Graves was 

not selected for any of the positions under the open and 
3 GRAVES v. NAVY

continuous announcement. Mr. Graves filed a petition for 

appeal at the Board, alleging violations of the Veterans 

Employment Opportunities Act of 1998 (VEOA), 5 C.F.R. 

part 300, harmful procedural error, and discrimination 

based on age, race, and sex. The Board found that it 

lacked jurisdiction over Mr. Graves’s harmful procedural 

error, discrimination, and all but one of his 5 C.F.R. part 

300 allegations. The Board construed one of Mr. Graves’s 

5 C.F.R. part 300 allegations to assert that the Navy 

improperly determined that he was not qualified at the 

GS-8 level for the medical records technician position 

under the specific vacancy announcement. The Board 

denied this claim on the merits. 

Mr. Graves petitioned for review before the full Board, 

which was denied. Mr. Graves now appeals the Board’s 

Final Decision. We have jurisdiction over his appeal 

pursuant to 28 U.S.C. § 1295(a)(9). 

DISCUSSION

We must affirm the Board's decision unless it is 

“(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without 

procedures required by law, rule, or regulation having 

been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). We review questions of law de 

novo. Stoyanov v. Dep’t of the Navy, 474 F.3d 1377, 1379 

(Fed. Cir. 2007). “Substantial evidence is ‘such relevant 

evidence as a reasonable mind might accept as adequate 

to support a conclusion.’” McEntee v. Merit Sys. Prot. Bd., 

404 F.3d 1320, 1325 (Fed. Cir. 2005) (quoting Consol. 

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). We 

review the Board’s discovery rulings for abuse of discretion. Curtin v. Office of Pers. Mgmt., 846 F.2d 1373, 1378 

(Fed. Cir. 1988). “If an abuse of discretion did occur with 

respect to the discovery and evidentiary rulings, in order 
GRAVES v. NAVY 4

for petitioner to prevail on these issues he must prove 

that the error caused substantial harm or prejudice to his 

rights which could have affected the outcome of the case.” 

Id. at 1379. 

Mr. Graves first argues that the Board abused its discretion in denying his attempts at discovery. Mr. Graves 

claims that his August 31, 2009 motion for sanctions 

should have been construed as a motion to compel. Mr. 

Graves made the same discovery arguments before the 

Board, which found that Mr. Graves had not shown that 

he complied with the Board’s regulations for discovery, 5 

C.F.R. § 1201.73, and that he had not filed a motion to 

compel discovery. The Board did not abuse its discretion 

in denying his motion for sanctions. Mr. Graves’s motion 

for sanctions did not allege that he had engaged in discovery, that the agency failed to respond to discovery, or even 

include his discovery request. The motion for sanctions 

was not for any outstanding discovery request by Mr. 

Graves, but rather generally requested that the Board 

sanction the Navy to fully comply with discovery requirements within 30 days. The Board’s denial did not abuse 

its discretion. 

On appeal, Mr. Graves argues that the Board violated 

our decision in Baird v. Department of the Army, 517 F.3d 

1345 (Fed. Cir. 2008). In Baird, the petitioner filed two 

motions to compel discovery concerning emails directly 

related to her case that could affect the outcome of her 

case. Id. at 1348, 1351. Unlike Baird, Mr. Graves did not 

file a motion to compel and has not shown how additional 

discovery could affect the outcome of his case. For example, Mr. Graves’s discovery request sought information 

concerning positions from January 2007, but Mr. Graves 

applied for the first position in 2009. The Navy disclosed 

information beginning in January 2009. On these facts, 

we cannot conclude that the Board abused its discretion. 
5 GRAVES v. NAVY

Mr. Graves also argues that his veterans’ rights were 

violated when the Navy appointed less qualified or not 

qualified non-veterans to Medical Records Technician 

positions. In assessing Mr. Graves’s qualifications for a 

GS-8 level, the Board found that the Navy followed the 

Office of Personnel Management’s qualification standard 

for GS-6 and above positions requiring one year specialized experience equivalent to at least the next lower grade 

level. Based on testimony from a Human Resource Specialist, the Board found Mr. Graves’s 12 months of coding 

experience was consistent only with entry-level work 

equivalent to a GS-5 level. The testimony explained this 

was consistent with a GS-7 level, but not a GS-8 level. 

The Board thus found that the Navy did not improperly 

determine he was not qualified at the GS-8 level. We 

must give deference to these agency fact findings. Mr. 

Graves has not shown that they were unsupported by 

substantial evidence. 

Because Mr. Graves was not qualified at the GS-8 

level in which Navy hired from for the specific vacancy 

announcements, the Board determined Mr. Graves’s 

veterans’ preference rights were not violated. The Board 

correctly determined that the Navy was not required to 

hire from the GS-7 certificates and that it was free to 

reassess and hire at the GS-8 level. See Abell v. Dep’t of 

the Navy, 343 F.3d 1378, 1383 (Fed. Cir. 2003) (“An 

agency . . . has discretion to cancel a vacancy announcement.”). In analyzing the positions under the open and 

continuous announcement, the Board also correctly noted 

that Mr. Graves was not entitled to veterans’ preference 

because the announcement was under merit promotion 

procedures. See Brown v. Dep’t of Veterans Affairs, 247 

F.3d 1222, 1224 (Fed. Cir. 2001). Similarly, the Board 

correctly analyzed Mr. Graves’s claims under the open 

and continuous announcement vacancies. 
GRAVES v. NAVY 6

We have considered Mr. Graves’s additional arguments on appeal and find them to be without merit. For 

the foregoing reasons, we conclude that the Board’s decision is in accordance with the law and supported by 

substantial evidence. The decision of the Board is therefore affirmed. 

AFFIRMED 

COSTS

No costs.